Everand Logo

Welcome to Everand!

  • Discover millions of ebooks, audiobooks, and so much more with a free trial

    Only $11.99/month after trial. Cancel anytime.

    Harvard Law Review: Volume 126, Number 4 - February 2013
    Harvard Law Review: Volume 126, Number 4 - February 2013
    Harvard Law Review: Volume 126, Number 4 - February 2013
    Ebook635 pages8 hours

    Harvard Law Review: Volume 126, Number 4 - February 2013

    By Harvard Law Review

    ()

    Read preview

    About this ebook

    The Harvard Law Review is offered as an ebook, featuring active Contents, linked notes, and proper formatting. The contents of Issue 4 include:

    Article, “The Limits of Unbundled Legal Assistance: A Randomized Study in a Massachusetts District Court and Prospects for the Future,” by D. James Greiner, Cassandra Wolos Pattanayak, and Jonathan Hennessy
    Book Review, “Stochastic Constraint,” by Neal Kumar Katyal
    Note, “Counteracting the Bias: The Department of Labor’s Unique Opportunity to Combat Human Trafficking”
    Note, “Tilling the Vast Wasteland: The Case for Reviving Localism in Public Interest Obligations for Cable Television”
    Note, “Preemption as Purposivism’s Last Refuge”
    Note, “The Meaning(s) of ‘The People’ in the Constitution
    Note, “Indian Canon Originalism”

    The issue includes In Memoriam contributions about the life, scholarship, and teaching of Roger Fisher. Contributors include Martha Minow, Robert Mnookin, and Bruce Patton.

    In addition, student research explores Recent Cases on waiver of class actions in employment arbitration agreements, class action certification after Dukes, the First Amendment meaning of “true threat,” the constitutionality of milk regulation, freedom of religion for prisoners, eavesdropping and the First Amendment, and the Foreign Sovereign Immunities Act. Finally, the issue includes two book notes of Recent Publications.

    LanguageEnglish
    PublisherQuid Pro, LLC
    Release dateDec 24, 2013
    ISBN9781610278928
    Harvard Law Review: Volume 126, Number 4 - February 2013
    Author

    Harvard Law Review

    The Harvard Law Review is a student-run organization whose primary purpose is to publish a journal of legal scholarship. The Review comes out monthly from November through June and has roughly 2500 pages per volume. The organization is formally independent of Harvard Law School. Primary articles are written by leading legal scholars, with contributions in the form of case summaries and Notes by student members.

    Read more from Harvard Law Review

    Related to Harvard Law Review

    Related ebooks

    Law For You

    View More
    View More

    Related podcast episodes

    Related articles

    Related categories

    Reviews for Harvard Law Review

    0 ratings

    0 ratings0 reviews

    What did you think?

    Tap to rate

    Review must be at least 10 words

      Book preview

      Harvard Law Review - Harvard Law Review

      Volume 126

      Number 4

      February 2013

      Smashwords edition. Published by Quid Pro Books, at Smashwords.

      Copyright © 2013 by The Harvard Law Review Association. All rights reserved. This work or parts of it may not be reproduced, copied or transmitted (except as permitted by sections 107 and 108 of the U.S. Copyright Law and except by reviewers for the public press), by any means including voice recordings and the copying of its digital form, without the written permission of the print publisher.

      The publisher of various editions and formats is The Harvard Law Review, who authorized Quid Pro Books to republish the issues as ebooks: Digitally published in ebook editions, for The Harvard Law Review, exclusively by Quid Pro Books. Available in major digital formats and at leading retailers and booksellers.

      Quid Pro Books

      Quid Pro, LLC

      5860 Citrus Blvd., suite D-101

      New Orleans, Louisiana 70123

      www.quidprobooks.com

      Cataloging:

      ISBN 978-1-61027-892-8 (ePUB)

      CONTENTS

      IN MEMORIAM: ROGER FISHER

      Robert C. Bordone

      [126 HARV. L. REV. 875]

      Danny Ertel

      [126 HARV. L. REV. 878]

      Martha Minow

      [126 HARV. L. REV. 881]

      Robert H. Mnookin

      [126 HARV. L. REV. 886]

      Bruce Patton

      [126 HARV. L. REV. 890]

      James K. Sebenius

      [126 HARV. L. REV. 893]

      William Ury

      [126 HARV. L. REV. 898]

      ARTICLE

      The Limits of Unbundled Legal Assistance: A Randomized Study in a Massachusetts District Court and Prospects for the Future

      by D. James Greiner, Cassandra Wolos Pattanayak, and Jonathan Hennessy

      [126 HARV. L. REV. 901]

      BOOK REVIEW

      Stochastic Constraint

      by Neal Kumar Katyal

      [126 HARV. L. REV. 990]

      NOTES

      Counteracting the Bias: The Department of Labor’s Unique Opportunity to Combat Human Trafficking

      [126 HARV. L. REV. 1012]

      Tilling the Vast Wasteland: The Case for Reviving Localism in Public Interest Obligations for Cable Television

      [126 HARV. L. REV. 1034]

      Preemption as Purposivism’s Last Refuge

      [126 HARV. L. REV. 1056]

      The Meaning(s) of The People in the Constitution

      [126 HARV. L. REV. 1078]

      Indian Canon Originalism

      [126 HARV. L. REV. 1100]

      RECENT CASES

      Arbitration and Class Actions — National Labor Relations Act — District Court Enforces Class Action Waiver in Employment Arbitration Agreement. — Morvant v. P.F. Chang’s China Bistro, Inc., No. 11-CV-05405 YGR, 2012 WL 1604851 (N.D. Cal. May 7, 2012)

      [126 HARV. L. REV. 1122]

      Civil Procedure — Class Actions — Fifth Circuit Holds that District Court Failed to Conduct Rigorous Class Certification Analysis in Light of Wal-Mart Stores, Inc. v. Dukes. — M.D. ex rel. Stukenberg v. Perry, 675 F.3d 832 (5th Cir. 2012)

      [126 HARV. L. REV. 1130]

      First Amendment — True Threats — Sixth Circuit Holds that Subjective Intent Is Not Required by the First Amendment When Prosecuting Criminal Threats. — United States v. Jeffries, 692 F.3d 473 (6th Cir. 2012)

      [126 HARV. L. REV. 1138]

      Constitutional Law — Economic Legislation — D.C. Circuit Rejects Challenge to Milk Regulation. — Hettinga v. United States, 677 F.3d 471 (D.C. Cir. 2012) (per curiam), reh’g en banc denied, No. 11-5065 (D.C. Cir. June 21, 2012)

      [126 HARV. L. REV. 1146]

      First Amendment — Free Exercise in Prisons — Fifth Circuit Holds That Prison’s Prohibition on All Objects over Twenty-Five Dollars Did Not Violate Prisoner’s First Amendment Rights or Substantially Burden His Religion Under RLUIPA. — McFaul v. Valenzuela, 684 F.3d 564 (5th Cir. 2012)

      [126 HARV. L. REV. 1154]

      Constitutional Law — First Amendment — Seventh Circuit Preliminarily Enjoins Eavesdropping Law as Applied to Police Monitoring Program. — American Civil Liberties Union of Illinois v. Alvarez, 679 F.3d 583 (7th Cir. 2012), cert. denied, No. 12-318, 2012 WL 4050487 (U.S. Nov. 26, 2012)

      [126 HARV. L. REV. 1162]

      International Law — Foreign Sovereign Immunities Act — Ninth Circuit Holds that Nonpayment in the United States by Counterparty Is Not a Direct Effect of Foreign State’s Breach of Contractual Duties to Be Performed Abroad. — Terenkian v. Republic of Iraq, 694 F.3d 1122 (9th Cir. 2012)

      [126 HARV. L. REV. 1170]

      RECENT PUBLICATIONS

      [126 HARV. L. REV. 1178]

      About the Harvard Law Review

      The Harvard Law Review (ISSN 0017-811X) is published monthly eight times a year, November through June, by The Harvard Law Review Association at Gannett House, 1511 Massachusetts Ave., Cambridge, MA 02138. Periodicals postage paid at Boston, Mass., and additional mailing offices. POSTMASTER: Send address changes to the Harvard Law Review, Gannett House, 1511 Massachusetts Ave., Cambridge, MA 02138.

      Current subscription: $60.00 individual / $200.00 institution, payable in advance. Remittance must be made by U.S. Dollar Draft payable at a United States bank. Subscription requests that are received midvolume may be subject to an additional postage and handling charge. Domestic claims of nonreceipt of issues should be made within 90 days of the month of publication, overseas claims within 180 days; thereafter, the regular back issue rate will be charged for replacement. All notifications of changes of address should include old and new addresses, with ZIP codes. Please inform us one month in advance to ensure prompt delivery.

      Single issues of Volume 126 are available from The Harvard Law Review Association at the following prices: $15.00 individual / $55.00 institution. Back issues and volumes prior to Volume 126 are available from William S. Hein & Co., Inc., 1285 Main St., Buffalo, NY 14209-1987. For the prices of issues, volumes, and sets prior to Volume 126, please inquire of William S. Hein & Co., Inc. (http://www.wshein.com).

      INFORMATION FOR CONTRIBUTORS

      The Review invites the submission of unsolicited manuscripts. The Review will give preference to articles under 50 law review pages in length — the equivalent of about 25,000 words including text and footnotes. The Review will not publish articles exceeding 60 law review pages — the equivalent of about 30,000 words — except in extraordinary circumstances. Please confine author’s name and biographical information to a removable title page. Footnotes should conform to the 19th edition of The Bluebook: A Uniform System of Citation.

      Review of manuscripts may take from four to six weeks. Authors who are considering concurrent submissions to other journals should be aware that the Review cannot guarantee timely responses to requests for expedited review.

      Send all correspondence to The Harvard Law Review Association, Gannett House, 1511 Massachusetts Ave., Cambridge, MA 02138.

      For additional information about the Harvard Law Review, or to submit a manuscript, please visit our website at http://www.harvardlawreview.org.

      IN MEMORIAM: ROGER FISHER

      [cite as 126 HARV. L. REV. 875 (2013)]

      The editors of the Harvard Law Review respectfully dedicate this issue to Professor Roger Fisher.

      Robert C. Bordone*

      It is the spring of 1997 and I am sitting in a Harvard classroom while Roger Fisher ’48, Samuel Williston Professor of Law, Emeritus, is telling a story about his serving as a weather reconnaissance pilot in World War II. As a teaching assistant for the Negotiation Workshop, I have heard the story at least a dozen times by now and feel my mind wandering. And yet, against my will, as the story reaches its crescendo and the combination punch-line/negotiation lesson flows from Roger’s lips, I find myself involuntarily leaning forward and, a second later, helplessly bursting into laughter. The note I jot down to myself is: All of life is about who tells better stories.

      Storytelling was indeed one of Roger’s many fine talents. His sense of timing, the inflection of his voice, and his radiant smile seemed to be calibrated perfectly to his audiences, whether they were law students, diplomats, soldiers, or community mediators.

      But teaching about all of life was Roger’s real gift and his ongoing legacy for generations of students, political leaders, CEOs, and others whom he touched, directly or indirectly, through his work.

      In certain ways, Roger did not fit in easily at Harvard Law School. In a profession that trains students to identify analytical gaps in others’ reasoning and to posit critical arguments for why something — an idea, a vision, a reform — that might seem likely to happen at first glance couldn’t, shouldn’t, or wouldn’t happen, Roger took a different tack. His energies seemed ever focused on figuring out how things that seemed unlikely could be made reality. In this way, he unwittingly exposed himself to charges that he was an ivory tower idealist, unaware of the harsh realities of a world filled with malevolence and evil.

      But to those who knew him, to those who witnessed his sharp mind in action every day, just the opposite was true. Here was a man who, after serving in Europe in World War II, returned home to learn that his college roommate and two close friends had perished in the conflict; a man who, as a young State Department lawyer, assisted W. Averell Harriman in crafting the Marshall Plan; a man who served as a fierce and partisan advocate for the government, winning eight straight arguments before the U.S. Supreme Court as a young lawyer. Though he had witnessed the consequences and carnage of violent conflict, Roger somehow chose to see, engage, and elicit the best of human potential.

      Roger was a master at the art of perspective-taking, of understanding how deep human needs — to be heard, valued, respected, autonomous, and safe — when unmet or trampled upon, become seeds of evil and violence, seeds that can cause us to villainize the other and that can motivate us to see the world in stark black and white terms. For Roger, the purpose of perspective-taking was never to excuse or justify evil. Rather, it was a way to discover new approaches to diplomacy, to influence, and to understanding. These approaches resonated with many because they cut across cultures, eschewed appeals to force, coercion, and power, and harkened to common human needs, which he often termed interests. Roger’s revolutionary approach to negotiation, one that typically began by putting the protagonist in the chair of her perceived opponent, giving her a view of the world through her adversary’s eyes, inspired generations of Harvard Law School students to commit themselves to conflict resolution as a career.

      Roger’s brilliant, and at times counterintuitive, thinking is embodied in a series of best-selling books, articles, and manuscripts spanning the second half of his long and storied career. The most famous of these works, Getting to Yes: Negotiating Agreement Without Giving In¹ (cowritten with William Ury and Bruce Patton), has been translated into thirty-six languages and has sold millions of copies. Though at times dismissed for choosing to write prescriptively and in easily comprehensible terms to a mass audience instead of articulating grand theory for an academic one, Roger nonetheless gave birth to an entirely new field of study within the academy. Though his work rarely appeared in the pages of this and other more scholarly legal journals, it nonetheless changed fundamentally the face of graduate school education, not just in law schools, but also in schools of business, public policy, communications, and diplomacy.

      Roger also used his academic vantage point to tackle real-world problems. His direct interventions and advice advanced negotiations that facilitated the signing of the Camp David Accords in 1979, eased the way for a peaceful transition of power in post-apartheid South Africa in the early 1990s, and promoted the resolution of a border dispute and the signing of a permanent peace treaty between Ecuador and Peru in 1998.

      But it is a mistake to think that Roger’s attempts to make a difference were always, or even mostly, successful; I suspect they were not. In my early days teaching at Harvard Law School, I can recall venturing into his office on occasion for some counsel or to ask a question. After sharing his thoughts with me, he would motion for me to sit down: Now, can I ask you for your advice? I am writing a letter to the Secretary of State about X . . . . or I’ve been drafting an op-ed to send to the New York Times about Y . . . . Time and again I was struck, first, that a professor, senior to me by half a century, valued the input of a twenty-something neophyte, and, second, that Roger seemed completely undeterred by the infinitesimally small chance that the Secretary of State would read his letter or that the Times would publish his op-ed. Always, with Roger, there seemed to be an unrelenting urgency to bring theory to practice, to make a difference on the ground. The problem, Roger would say, is not in finding a solution. Lots of smart people discover good solutions all the time. The problem is finding a way to get there.

      Thirty years after Roger first started teaching the Negotiation Workshop at Harvard Law School, the course remains one of the most popular at the Law School, and the pedagogy it deploys — creative and interdisciplinary — remains a model for others at Harvard and around the world. In designing the course, Roger drew from many academic and pedagogical wells. He experimented with new teaching methods, the use of simulations, and the use of video and intensive personalized feedback. He looked outside the confines of the law to integrate the work of thinkers like Professor Chris Argyris in action science and Professor Howard Raiffa, a renowned Bayesian decision theorist, to name just two. In both its content and its form, even with twenty years of innovation since his retirement, the Negotiation Workshop remains one of the enduring gifts that Roger left Harvard Law School.

      But as a teacher I carry with me more than just the concepts, the pedagogy, and the form of the Negotiation Workshop, more than just the course content and delivery style.

      For example, at the end of class each day during my time as a teaching assistant, I remember Roger throwing away the empty Coke bottles and candy wrappers students had left at their seats. By the midpoint of the semester, students disposed of their own garbage.

      Those of us who had the honor of having Roger as a professor or of working with him in the Negotiation Workshop will surely recall similar subtle teaching moments along with his more blunt exhortation, Choose to help. In other words: don’t just do your job well, but be observant; find ways to exert your influence to make a positive difference whenever you can.

      As I think about Roger’s career, his many accomplishments, and his long life, it seems to me that his admonishment to us embodied his own calling: Choose to help.

      In a profession in which sharp-edged critiques can often outnumber new ideas, and in a world where threats, whether of lawsuits or wars, seem to eclipse the voices of engagement and dialogue, Roger’s contributions — his scholarship, his stories, his example, and his never-ceasing choose to help attitude — are to me as inspiring, fresh, and urgent as ever. I trust they will remain alive in the heart of this student — and in those of so many others — for years to come.

      Danny Ertel*

      Roger Fisher was a man intent on changing things for the better, directly, personally, and tangibly. He wrote books that changed how millions around the world think about negotiation and conflict and relationships. But he also picked up the phone and hopped on airplanes to go and speak directly with the protagonists in a conflict about how they could more effectively resolve their differences if they started by listening and understanding, and if they thought creatively about how their counterparts could also meet their legitimate interests in a way that was better for them than prolonging the conflict.

      Roger developed models and tools for practitioners. His focus on the prescriptive — what can we do? — rather than descriptive or normative, made him a life-long learner of what works and what doesn’t and why. Roger was also a consummate storyteller, and he used stories to help crystallize key lessons for himself, and to make them memorable for his students. There is one from my time working with Roger that still serves me today in my consulting practice.

      I was working with Roger in the late 1980s advising the Government of El Salvador and the high command of the Farabundo Martí National Liberation Front¹ (FMLN) on the peace process that eventually ended the decade-long civil war. Through a set of relationships and coincidences too long to recount here, we were working with both sides. They knew this, and when reminded, each often said: Oh good, they need your help even more than we do! Over a period of months, we met with rebel and government leadership and their negotiating teams, always unofficially, and always trying to help think through not only what they were trying to accomplish but also what it would take for the other side to be able to say yes.

      During this time, Roger was very interested in the importance of process. When pressed by the parties for a substantive proposal, he would say: Solutions aren’t the answer. For this small country, with families literally divided by the civil war — one member of the negotiation support team for the FMLN had an uncle on the government negotiation team — to have a chance at reconciliation and stability after the war, the process by which they came up with whatever terms they could both accept was as important as what the terms actually were.

      As the parties jockeyed for future political advantage in their negotiations over reforms to the judicial and electoral systems, Roger pushed them to think about processes that would seem fair and appropriate regardless of who commanded more votes or headed which institutions. As they talked about ceasefire timetables and conditions, he pushed them to think about how they could jointly investigate breaches, rather than hand any extremist with a gun a veto over the peace effort. He tried to persuade them that well-crafted processes could be neutral and could facilitate effective problem solving. We were already doing something a bit radical by advising both sides concurrently, and we wanted to emphasize the neutrality of our advice by demonstrating that our advice to each was identical. Following each round of meetings, we would craft a note synthesizing key conclusions from our discussions and offering further analysis and suggestions about how to proceed. Each time, we made a point of sending that same memo to both sides, at the same time.

      One particular memo and its impact, however, taught us something about the limits of process neutrality and the importance of recognizing the differential impact even neutral process could have on the decidedly partisan perceptions of different parties. We were at a point at which each side was making demands, in public, and leaving little room for compromise. The government insisted that the rebels put down their arms before any reforms in the judicial, electoral, or land-distribution systems could even be discussed. The rebels, on the other hand, insisted that as a precondition for any negotiation about the cessation of hostilities, there must be reforms to the judicial and electoral processes and a commitment to land redistribution.

      We wrote a memo to help each side understand why the other could never agree to their demands and to propose they begin, without preconditions, a series of discussions that would address, in parallel, security, political, and civil society issues. The FMLN received our memo, which started with a chart, written from the perspective of the rebel high command, in which we articulated the consequences to the decisionmaker of accepting or rejecting President Cristiani’s demands. These consequences were along the lines of: If we agree . . . we’ve put our guns down without accomplishing anything in twelve years of civil war, and our supporters may refuse to go along. If we say ‘no’ . . . we continue to fight for a righteous cause . . . and the Government may eventually give in. They later told us that as they read it, they said: Yes, that’s why Cristiani’s demands are not serious. Anyone really interested in peace wouldn’t ask us to do this. They turned the page and read a similar chart, this time written from President Cristiani’s perspective, which described how their demands looked and felt to the President. If I agree . . . we’re caving in to illegitimate pressure, accepting reform via bullets rather than ballots, creating a terrible precedent for the future . . . and it may lead to a military coup. If I say ‘no,’ we may yet inflict sufficient losses militarily that they will come back with a better offer. The rebel leadership chuckled: Boy, would Cristiani have a problem if he agreed. This realization led them to read with interest a suggested alternative path to peace negotiations.

      Unfortunately, in our urge to deliver exactly the same memo to both sides, we presented the Cristiani Government with a memo that started out with a description of why the rebels could not accept his demands. They read no further, and Roger and I suddenly found it harder to gain permission to enter the country.

      We eventually were able to get past this misstep and continue to work with both sides, including facilitating lengthy workshops in Cambridge with the rebel negotiation team and in San Salvador with the government team. We continued to play a role in the background as the parties entered into formal talks mediated by Álvaro de Soto, Personal Representative of the U.N. Secretary-General for the Central American Peace Process. But I had learned an important lesson about process neutrality — even if we don’t change what we say, the sequence in which the parties hear it matters. To be persuasive, it is more important to start with where your interlocutor is than to defend the purity of your model or your process.

      In some ways, this lesson had always been a part of Roger’s modus operandi. Getting to Yes,² after all, is built on the premise that the best way to accomplish your objectives is often to help your counterpart accomplish his or hers. His subsequent book, Getting Together,³ focused on building relationships, making the point that we are always more persuasive and effective when we seek to understand our counterparts, whether or not they reciprocate. As an interventionist, he was at his best when he was able to help whomever he was working with both feel heard and begin the effort of understanding his or her counterpart in the conflict at hand.

      This emphasis is part of what made Roger such a great teacher and mentor: he always focused our work on trying to understand how others perceived the situation, including our role in it, so we could be more effective. Of course we had views on how the parties might resolve their differences more effectively. But I have never before or since seen an accomplished professional and expert more curious and interested in learning something from every interaction, or more willing to modify his own theories and models based on what he learned. Every stakeholder was different and saw the world through his or her own filters. The processes we followed and recommended might have been neutral in that they were constructive regardless of which side initiated or applied them, but they were animated by the perceptions and assumptions of the parties, and in the end, that is what would determine their effectiveness, which mattered far more to Roger than whose process it was.

      Martha Minow*

      There was no conflict too big or too small for Roger Fisher to tackle. He believed that yesable propositions are a good place to start. Devise something concrete and basic, to which both sides in a dispute could agree. Perhaps initially that agreement could only be over something silly or banal. Nonetheless, it would offer a place to begin. Roger brought the teaching, theorizing, and practice of conflict resolution into Harvard Law School, and this work spread across the world.¹ Roger’s pioneering work in teaching and conducting negotiations won him recognition in many communities.² Lucky to be his colleague for over thirty years, I learned from many conversations with him and from his example about the power of connecting theory and practice with optimism in tackling big problems. As Dean, it is my privilege to celebrate Roger’s accomplishments³ and forecast his legacy. Expressing myself alone on behalf of the entire institution where Roger spent most of his professional career would not, however, fully honor Roger’s own spirit of collaboration. So I have consulted others at Harvard Law School and here draw on reflections by former students, colleagues, and collaborators.

      Negotiation was not offered in the teaching program at Harvard Law School before Roger decided to teach it. Roger started with a seminar in 1979, and he worked to understand negotiation as a process that could be analyzed. His first important insight was to teach the same tools to people on both sides of the conflict. He wanted to treat negotiation not as trickery, but instead as a way to deal with differences, to see the other side, and to generate workable solutions. Roger taught that you want to negotiate like a mediator who tries to understand the interests of both sides and figure out how they can dovetail together.⁴ His seminar grew into intensive courses that were taught through simulation and that enrolled hundreds of students each year. For him, teaching was not about passing on information but instead about engaging students as choosers and actors through assignments like negotiating hypothetical disputes — or negotiating their own grades for the course.

      He cofounded and directed the Harvard Negotiation Project and helped to create the multi-university Program on Negotiation. He stimulated serious training for students at Harvard Law School and for professionals and others from around the world. His scholarship and hands-on projects addressed serious conflicts, including the Iranian hostage crisis and peace negotiations in Central America, South America, and the Middle East. For Roger, working in the field was crucial to advancing his understanding as well as to trying to make the world better. He offered advice even in seemingly hopeless situations. He constantly tested steps that he thought might help. These experiments informed his writing and teaching — and his advice to leaders — like suggesting the use of a single text by a third party to prompt revision by competing sides.

      Roger’s landmark book, Getting to Yes: Negotiating Agreement Without Giving In,⁵ has been translated into thirty-six languages, selling some eight million copies. Coauthor Bill Ury explains the writing process: In effect we were using the single-negotiating-text process with its endless revisions until we were both satisfied with the result.⁶ The results are memorable: Separate the people from the problem, Focus on interests, not positions, Invent options for mutual gain, and Insist on using objective criteria.⁷ I am one of so many people adopting these approaches for two simple reasons: they make sense, and they work.

      Making sense and making things work were Roger’s stock-in-trade. An accomplished lawyer who argued cases before the Supreme Court as Assistant to the Solicitor General, he once pressed his luck before the Court: he did not sit down when the red light at the podium came on. Instead, he said, I see my time has expired, but I ask for five additional minutes. Justice Burton came to his rescue and asked a question, allowing Assistant Solicitor General Fisher to finish his point. Roger Fisher negotiated his way even with the United States Supreme Court.

      Despite his prowess as an appellate lawyer, he searched for and created effective alternatives to adversarial process. He never forgot the devastation of World War II, in which he fought as a volunteer in the Army Air Corps. The war took his college roommate and other friends. Afterward, he pursued foreign affairs; he served on Ambassador Averell Harriman’s Marshall Plan staff, and he held a post consulting for John McNaughton, U.S. Assistant Secretary of Defense for International Security Affairs. He constantly asked, how could he personally make the world better?

      The optimism and creativity fueling his life also informed his specific intellectual contributions. He identified how, with imagination, the interests of competing parties could be advanced by seeking winwin solutions, rather than viewing a conflict as a zero-sum game. He urged people to focus on what would happen without a negotiated solution — which often helps people realize there could be an option better than leaving matters as they lie.⁸

      Even with Roger’s own geniality, he understood human irritations and dislikes — and paid attention to how deep hatreds and personal dislikes could contribute to conflicts and prevent their resolutions. He viewed the separation of such feelings from the conflict as a central step toward resolution. Whether we like people or dislike them, whether we agree or disagree, our goal should be to establish an array of good working relationships, relationships that include the ability to deal well with whatever differences come along.⁹ He realized that when people have a problem, their own perspectives can seem definitive. He urged problem solvers to work hard to see the perspective of others; he also urged everyone to see the human dimension of a conflict as separable from the substance. He emphasized how important it is to anticipate and attend to feelings of hurt, grievance, anger, neglect, or the shame of being disrespected; he taught public officials, lawyers, and so many others the power of finding ways to connect on a human level before negotiating through a conflict.

      Maybe he understood conflicts so well because he was so different. One colleague said to me, I admired the crazy way he marched to his own drummer. And he differed from most of his colleagues in his commitment to experiential teaching methods. He exploded the myth that negotiation could not be taught, as well as the myth that it could not be theorized. As Bob Mnookin observes, For some the workshop was transformative: it literally changed how they approached conflict in their professional and personal lives.¹⁰ One of Roger’s greatest legacies lives on in his students, many of whom are now distinguished and accomplished negotiators and teachers of negotiation.

      His connection with students embodied his openness to ideas and capacity to listen. Students remember how his eyes lit up when he heard a good idea and how he stood out for his willingness to look for good ideas from anyone, including young, inexperienced students. Even as a busy faculty member, he would spend hours with students, absolutely focused on them; he consciously sought to convey to each student the feeling — and the reality — that he or she was, in that moment, absolutely of singular importance. One former student explains, Roger taught me — and thousands of others who joined him over the years — how to observe the world closely, listen past posturing to the underlying structure of the conflict, and how to invite people to see possibilities that didn’t require them to give up who they were in order to lay down their arms or their arguments.¹¹

      Roger’s commitment to education and to improving the world led him to reach beyond the academy and training program and find a broader audience through television. He developed a program called The Advocates in order to stimulate public discussion and understanding about realistic choices about tough problems and to demonstrate how public officials and constituents can engage productively together. Serving as executive producer of the show between 1969 and 1974 and again between 1978 and 1979, Roger had the occasion in 1970 to interview President Nasser of Egypt in a segment for the show. During the interview, Roger drew President Nasser out on what terms he might be willing to accept in resolving the Egyptian conflict with Israel — and the possibility of a ceasefire with Israel emerged precisely at the time when Israel and Egypt were engaged in conflicts along the Suez Canal. Roger contacted Under Secretary of State Elliot Richardson (HLS ’47), who in turn contributed to the plan that ultimately produced a ceasefire.¹²

      Roger’s influence will endure through those whom he so powerfully touched, through the ideas that themselves create ripples, through the Program on Negotiation he forged, and through his own writings, his colleagues’ publications,¹³ and Beyond Reason, his final and coauthored book.¹⁴ He will be remembered as enthusiastic, bold, generous, practical, and idealistic, all at the same time.

      There is a story Roger liked to tell about himself. He was not confident about how effectively he was teaching early in his career at Harvard Law School. Nonetheless, on the day the appointments committee came to evaluate him, the students rallied around him and made the Socratic dialogue seem brilliant and the classroom electric. Roger liked this story for many reasons; he liked to comment that it demonstrated to him how the supposedly powerless — an untenured faculty member, the students at risk of being cold-called — could be decisive participants in a decisionmaking process.¹⁵ I think the story also shows how he ably recruited people and won their confidence and trust, turning what could be adversarial into a win-win situation.

      Roger Fisher taught people to expand the pie and create value as part of resolving their differences. He was a man of values who created value. We will miss him as we search for yesable propositions and other ways to make the world better.

      Robert H. Mnookin*

      Some nineteen years ago, Roger Fisher passed on to me the negotiation torch here at Harvard. Dean Robert Clark had recruited me from Stanford to return to my alma mater and build on the foundation that Roger had created — to become his successor as the head of Harvard’s Program on Negotiation (PON) and to assume his chair as the Samuel Williston Professor of Law. Roger graciously welcomed me, and warmly supported my appointment. As a founder of PON and the professor responsible for the negotiation curriculum here at Harvard Law School, it could not have been entirely easy for him given circumstances not within his control. He had turned seventy, and much to his consternation the law at that time permitted Harvard to impose emeritus status on professors when they reached that age.¹ Roger was full of energy and ideas, and eager to keep spreading the word about problem-solving approaches to conflict resolution. Fortunately for the field, he did anything but retire. He remained passionately engaged at PON for many years through his writing, teaching, and mentoring.

      I appreciate this opportunity to salute Roger and acknowledge in print my gratitude for the opportunity to build on the magnificent foundation he provided.² Roger was a creative problem solver who was committed to the cause of peace and who relished the opportunity to parachute into (invited or not) real-world conflicts. Others in this volume will salute his remarkable achievements along these dimensions. My focus here will be on his legacy as a professor: his seminal contributions to negotiation theory, negotiation pedagogy, and institution-building within the university.

      Some academics — especially social scientists — might be surprised by my claim that Roger made seminal contributions to negotiation theory. But they are surprised because they do not understand a critical distinction between three different kinds of theory³: (1) Normative theory, based on formal models, aims to work out how rational actors ought to behave, given certain behavioral assumptions. Game theory and axiomatic microeconomic theory are examples. Roger was impatient with this kind of theory. He found the assumptions much too reductionist to capture the full range of human motivations. (2) Positive theory, based on systematic empirical research, aims to predict more accurately how people actually behave. Research and writing in cognitive and social psychology and experimental economics aim to contribute to positive theory through empirical investigations. Roger had little interest in hypothesis testing or systematic empirical research either. (3) Prescriptive theory aims at offering generalizations about how a person should negotiate given people’s actual behavioral inclinations in the real world. This type of theory was Roger’s passion.

      No one has made more seminal contributions to prescriptive negotiation theory than Roger Fisher. All of Roger’s writings during the past thirty years reflect this prescriptive orientation. Indeed, Roger was impatient — at times too impatient, in my view — with social science research conducted to support other kinds of theory. Roger’s goal was to offer prescriptive advice on how parties in conflict might negotiate more effectively.

      Roger’s most noted prescriptive contribution is, of course, Getting to Yes,⁴ written with Bill Ury and Bruce Patton. This classic has sold more than eight million copies. (My hunch is that no other book written by a Harvard Law professor has come close.) To this day it is found in every airport bookstore in the world. This inviting, readable book offers powerful guidelines on how to achieve win-win or mutual-gain outcomes: for example, focusing on the parties’ underlying interests, not their positions; harnessing the power of legitimacy by insisting on normative principles and objective criteria; and developing a negotiation process that leaves room for inventing options for mutual gain. Getting Together: Building Relationships as We Negotiate,⁵ written with Scott Brown, emphasizes reciprocity as a powerful norm that affects behavior, and advises negotiators to be unconditionally con structive. Roger’s last book, written with Dan Shapiro and published when Roger was eighty-four years old, is entitled Beyond Reason: Using Emotions as You Negotiate.⁶ This book identifies five core concerns that trigger emotions during a negotiation and offers advice on how to use emotions to facilitate cooperation.

      Apart from his writings, Roger Fisher championed negotiation pedagogy. In the twenty years following 1979 — when he first offered a negotiation seminar to some twenty-four students here at Harvard Law School — Roger helped thousands improve their negotiation skills through courses and workshops he taught in conjunction with Harvard colleagues. In doing so he exploded several myths: that negotiation could not be effectively taught; that negotiation was not a proper subject for a university-based offering; and that there was no relevant theory that could help a person become a more effective negotiator.

      A creative and innovative teacher, Roger was committed to experiential methods that required students actively to participate in their own learning. In response to ever-increasing student demand at Harvard Law School for negotiation courses, Roger soon moved beyond a seminar format and developed an intensive three-week Winter Term negotiation workshop — offered in collaboration with Professor Frank Sander and Bruce Patton and student teaching assistants — that soon became among the Law School’s most sought-after offerings. At Harvard College, Roger developed a popular undergraduate course in International Conflict Resolution. And last but far from least, Roger drew thousands of lawyers and managers to Harvard for three- and five-day workshops that he offered along with colleagues from PON and the Harvard Negotiation Project.

      In his teaching, Roger’s orientation was prescriptive: his aim was to teach people to be more effective negotiators by employing the principles he had developed in his writing. He always underscored the importance of preparation and of trying to see the problem through the other person’s eyes. Students were encouraged to experiment with the ideas that Roger championed in his writings: to probe for the underlying interests of the parties, to be creative, and to marshal the power of legitimacy. But he did far more than preach the gospel of win-win. Through negotiation exercises students were given the opportunity to try out the prescriptive ideas offered and then to reflect critically on their own experience, on what worked well and what they might do differently next time. Nearly all of Roger’s students found the opportunity to improve their negotiation skills valuable. For some the workshop was transformative: it literally changed how they approached conflict in their professional and personal lives.

      The third dimension of Roger’s legacy relates to institutions he founded here within Harvard University. Roger was instrumental in the creation of both the Harvard Negotiation Project, which he directed until 2008, and its parent organization, PON. From its creation, PON’s mission has been to improve the theory and practice of negotiation through interdisciplinary research and teaching. Roger was always interested in spreading the word — that is, widely disseminating the best negotiation ideas and practices. Roger understood that an institution based here within the University, with a professional staff, could accomplish this task. Founded in 1983, PON is housed here at Harvard Law School but is an inter-university consortium involving faculty from MIT, the Fletcher School of Diplomacy at Tufts, and various professional schools and departments here at Harvard. Roger’s special genius was to foresee that such activities could be made financially self-sustaining through executive education programs that drew lawyers and executives to Harvard for negotiation training.

      Along all three dimensions Roger’s legacy remains vibrant. PON has expanded in budget, mission, and reach. Today, PON has a budget of over $3 million a year. It publishes the Negotiation Journal, a monthly newsletter, supports doctoral research fellows, and provides seed money for young faculty. Indeed, PON’s example has inspired any number of universities throughout the world, which today have university-based research programs concerned with negotiation and dispute resolution.⁷

      With respect to teaching, during the last year over 1000 executives attended PON’s senior executive program, and hundreds more took week-long courses as part of the Harvard Negotiation Institute. Within Harvard Law School the Negotiation Workshop is today taught to over 250 students each year and yet remains oversubscribed. PON faculty affiliates offer negotiation courses at the Kennedy School of Government, the Harvard Business School, the Fletcher School at Tufts University, and MIT. Hundreds of other negotiation courses and workshops throughout the world rely on simulations and exercises distributed by the Clearinghouse of the Program on Negotiation.

      Finally, the orientation of PON’s faculty remains primarily, although not exclusively, prescriptive. We are committed to the further development of theory that will facilitate the constructive, fair, and efficient resolution of human conflicts of all sorts. I know it pleased Roger that my PON and Harvard Negotiation Project colleagues and I have written many books aimed at people who want to become more effective negotiators.⁸

      In sum, here at Harvard, with respect to Roger Fisher’s commitments to our field — exemplified by his writing, his teaching, and his institution-building — the work goes on, the cause endures, the hope still lives⁹ that we will continue to improve both the theory and practice of negotiation.

      Bruce Patton*

      Arguing before the U.S. Supreme Court, Roger Fisher won eight straight cases for the government as Assistant Solicitor General. This result occasioned a reminder from his boss that, while the government wanted to win each case, it wasn’t in the interest of the Republic for the government to win every case. Many people may not realize how much the persuasive skills and principles that enabled this extraordinary record of advocacy were at the heart of Roger’s thinking about negotiation and conflict management. But Roger was first and foremost a gifted lawyer, and

      Enjoying the preview?
      Page 1 of 1